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Saturday, 27 October 2018

Whether it is necessary to hear judgment debtor prior to attachment of household goods?

Having regard to the contention of the appellant and the facts and circumstances of the case, in our considered view, the Executing Court ought to have heard the application on merits. Considering the nature of the movable properties - Bureau, Television, Refrigerator, etc., the seizure of household articles would cause serious prejudice to the appellant. In such view of the matter, the contention of the appellant that petition under Order 21 Rule 58 could be filed only after actual attachment cannot be accepted. Therefore, the order of the court below giving a finding that the Petition under Order 21 Rule 58 of C.P.C. is to be set aside and it is accordingly set aside.

Madras High Court

Mrs.Nalini Sivaprakash vs K.A.Ganesan on 12 January, 2012

CORAM:
MRS.JUSTICE R.BANUMATHI
and
MRS.JUSTICE S.VIMALA

The short question to be decided in this appeal is, the stage at which the petition under Order 21 Rule 58 of Civil Procedure Code can be filed, during the course of Execution Proceedings, raising objection to the attachment of movable properties, i.e., whether the petition can be filed on the orders of attachment being ordered by the Court or it can be filed only after the execution of orders of attachment.

2. This appeal has been filed by the appellant/third party to the suit/Execution Petition. The respondents 1 and 2 herein are the decree holder and judgment debtor respectively. The first respondent herein had obtained a money decree in O.S.No.4460 of 1996, dated 4.11.1996. Execution Petition has been filed in E.P.No.28 of 1998. Petition was filed in E.A.No.4591 of 1998, praying for attachment of movable properties, and it was ordered on 12.11.1998, ordering attachment of movable properties as covered under Exs.P3 and P4 (T.V., Refrigerator, Bureaus, Tables and Chairs). The order of attachment has been passed, accepting the contention that those movable properties were belonged to the judgment debtor E.V. Rajan.

3. Raising a plea that the movable properties ordered to be attached, belong to the appellant/third party and therefore it is not liable to be attached, an Interlocutory Application has been filed. The lower court dismissed that petition on 10.3.2003, giving a finding that the movable properties are yet to be attached and that the petition filed under Order 21 Rule 58 C.P.C is pre-mature and therefore, it is not maintainable. Challenging the said order of dismissal dated 10.3.2003, the third party/appellant has preferred this Civil Miscellaneous Appeal.

4. This appeal is resisted by the decree holder on the following two grounds:

(i) The petition is pre-mature and therefore, it is not maintainable, as rightly held by the court.

(ii) Even assuming that the petition is maintainable, the petition ought to have been filed only after the properties are actually attached and not before that."

5. In order to appreciate the contentions raised by the parties, it is preferable to consider the provision under Order 21 Rule 58 of Civil Procedure Code, which reads as follows:

"Rule 58: Adjudication of claims to, or objections to attachment of property---

(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed in adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained--

(a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. ......."

6. Order 21 Rule 58 is the material provision dealing with any claim or objection that may be made to the attachment of any property in execution of a decree. The object of Order 21 Rule 58 is to release the property from attachment, so as to save it from a wrongful sale.

7. Now the question is whether the petition under Order 21 Rule 58 is to be filed when the court passes an order of attachment or objection can be made, only after the order of attachment is executed.

8. The first contention of the learned counsel for the decree holder is that the petition under Order 21 Rule 58 of the Civil Procedure Code is maintainable only after the property is actually attached, as contemplated in the mode prescribed under Order 21, Rule 43 of the C.P.C. Order 21, Rule 43 of the C.P.C., speaks about the attachment of movable property other than the agricultural produce, in the possession of the judgment debtor. The attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinate, and shall be responsible for the custody ....."

9. Pointing out the provision under Order 21 Rule 43 C.P.C, it is contended that since there had been no actual seizure, the attachment is not effected and therefore, the petition is not maintainable. In other words, the contention is that in as much as the movable property has not been actually seized, the attachment is an inchoate attachment and therefore, the petition is not maintainable.

10. The case of appellant is that the house in old D.No.3/439, New No.3/28, Raja Street, Lakshmana Perumal Nagar, Kottivakkam, Chennai 41 belongs to the appellant. In support of her plea the appellant has produced Ex.P.2 sale deed (dated 16.7.1986), the ration card and also the electricity consumption card. Contention of appellant is that the judgment debtor, being the sister's son of the appellant, with a malafide intention decree holder has obtained an order of attachment of movables which are lying in the house of the appellant.

11. Having regard to the contention of the appellant and the facts and circumstances of the case, in our considered view, the Executing Court ought to have heard the application on merits. Considering the nature of the movable properties - Bureau, Television, Refrigerator, etc., the seizure of household articles would cause serious prejudice to the appellant. In such view of the matter, the contention of the appellant that petition under Order 21 Rule 58 could be filed only after actual attachment cannot be accepted. Therefore, the order of the court below giving a finding that the Petition under Order 21 Rule 58 of C.P.C. is to be set aside and it is accordingly set aside.

12. The decree obtained in the year 1996 could not be executed even in the year 2012. Having regard to the long pendency of execution petition, the lower court is directed to decide the petition under Order 21, Rule 58, on merits, giving top priority to the Execution Petition.

13. In the result, the order of the Executing Court X Assistant Judge, City Civil Court, Chennai in E.A.No.4591 of 1998 in E.P.No.28 of 1998 in O.S.No.4460 of 1996 dated 10.03.2003 is set aside and this Civil Miscellaneous Appeal is allowed. The Executing Court shall not be influenced by any of the views expressed on the merits of the matter and is directed to afford sufficient opportunities to both parties and decide the matter on merits, preferably within three months from the date of receipt of a copy of this Judgment. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.